RE RAVI KUMAR

CAMP 311/2022

[2023] HKCA 418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 311 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2535/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”)  dated 2 September 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 7 November 2018 (“the Board’s Decision”)  dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 9 February 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of India. He entered Hong Kong illegally on 19 April 2012 and was arrested by the police on the same day.  On 22 April 2012, he lodged a torture claim, which was rejected by a decision of the Director dated 30 July 2012, against which he did not appeal.  By a supplementary claim form dated 12 January 2018, he raised a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by his paternal uncles and aunts due to a land dispute. The details of the applicant’s claim have been summarised by the Judge at [1] to [3] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 9 February 2018, the Director decided against the applicant’s claim.  The Director’s Decision covered the persecution risk[2], the BOR 2 risk[3] and the BOR 3 risk[4] (i.e. all applicable grounds other than torture).

5.  The applicant appealed to the Board.  After a hearing on 19 September 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing his appeal, the Board found that the applicant’s evidence on the claims concerning the land dispute was incredible, and that it should be rejected in its entirety.

The Judge’s decision

6.  The applicant filed a Form 86 on 12 November 2018 seeking to judicially review the Board’s Decision, without setting out any grounds.

7.  In his supporting affirmation, the applicant contended that the Immigration Department had disregarded his dangerous situation.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [9] to [14] of the CALL-1 Form:

“9.  On 12 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he rejects the decision as it disregarded his dangerous situation but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

10.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 18 – 35 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

12.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

13.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The present application for extension of time to appeal

9.  The applicant’s last known address in his Form 86 was at Kim Tin Yuen, Yuen Long.  On 25 May 2021, the applicant informed the court that he had moved to an address at New Street, Yuen Long (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 2 September 2021, and were not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 2 September 2021.

11.  The applicant thereafter took out a summons in the Court of First Instance on 4 October 2021 seeking extension of time to appeal, in which his address was stated to be the Address.  In his supporting affirmation filed on the same date, he stated that he did not “get judgment in time” and asked the court to grant him an extension of time to appeal.

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 12 July 2022[5].

13.  By a summons filed on 24 August 2022, the applicant renewed his application for an extension of time to appeal before this court, wherein he stated that he did not agree with the “High Court judgment” and asked this court to “permit [him] to appeal”.  In his supporting affirmation, he repeated his request for an extension of time.

14.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court.  He is therefore debarred from lodging and relying upon any written submissions.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  As noted above, the Judge’s Decision was sent to the last notified address of the applicant and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

17.  In any event, he has failed to proffer any explanation at all for the delay in lodging his intended appeal.  

18.  We have however nonetheless proceeded to consider the merits of the intended appeal.

19.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

20.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

21.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

22.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 24 August 2022 is accordingly dismissed.